Monday, February 03, 2003

At the American Bar Association's Winter meeting in Seattle, the delegates will vote on a highly questionable new Standard regarding non-malignant asbestos-related disease claims. ATLA President Mary Alexander doesn't think much of the proposal, in that it would severely limit the ability of an injured claimant to successfully obtain damages in what has been a well-settled area of personal injury litigation for years. Here is her open letter in opposition to it:

January 28, 2002

The Honorable Dennis Archer
American Bar Association
750 N. Lake Shore Drive
Chicago, Il 60611

Dear Mayor Archer,

It is with sadness that I express my disappointment, as well as that of the Association of Trial Lawyers of America, over the Report of the American Bar Association's Commission on Asbestos Litigation. The Report is an extreme departure from the ABA's historic commitment to the rule of law as enunciated by the courts of the fifty states. Moreover, it represents a crippling blow to the legal rights of hundreds of thousands of injured Americans.

It is important to understand at the outset that we believe the Report's proposed "Standard For Non-Malignant Asbestos-Related Claims" could alter the law adversely with respect to as many as ninety percent of all asbestos-related claims. For these claimants, the Standard has a sole and undisguised purpose: to block their access to the courts, to prevent them from even having their cases heard.

That is a troubling proposition for the American Bar Association to be advancing. Yet, the Report unmistakably states that if an individual suffering from non-malignant asbestos-related disease fails to meet an onerous standard even before filing a complaint, that failure "shall result in the dismissal of the action."

The proposed Standard is not the law in any of the fifty states. Under current law, claimants are justly awarded compensation for non-malignant injury upon meeting a stringent standard of proof at trial that is less onerous than the rigid criteria the ABA would impose before even permitting a claimant his or her day in court.

To suggest that the Standard will exclude "only those claims involving individuals who have no functional impairment" belies the unprecedented jurisdictional burdens the Standard actually imposes. For example, before being permitted to exercise their legal rights to file a complaint, claimants would be required to produce an extensive "detailed narrative Medical Report and Diagnosis" signed by a doctor (a narrative which incidentally would have to include extensive evidence of a
claimants' non-medical history -- work history -- that even the most accomplished doctor would be hard-pressed to know or to certify).

Even if the claimant's pulmonary physician diagnoses an otherwise compensable non-malignant asbestos disease, the heightened X Ray standards, and Forced Vital Capacity and Total Lung Capacity standards (none of which are required under the current law of any state) require claimants to meet these unrealistic standards as a pre-requisite to gaining access to the courts.

Sadly, the Report raises many more troubling concerns that cannot be fully addressed in this letter. I would be remiss, however, if I closed without addressing two additional matters specifically. First, it is incorrect that the Report satisfactorily preserves rights by tolling statutes of limitations until such time as the medical criteria can be met. On the one hand, the Report denies Americans their right to petition the courts unless they can meet onerous, sometimes impossible to meet, criteria. On the other hand, the Report in effect says to these Americans: "Sure, you lose your rights unless you meet new and potentially unsurmountable burdens, but we'll give you forever to meet them."

I am also constrained to object to the Report's callous and disingenuous treatment of issues relating to the residents of Libby, Montana. Acknowledging the tragedy of the "asbestos pleural disease" brought upon these residents by W.R. Grace, the Commission is unconcerned the disease likely would fail to meet the mandatory medical Standard. Instead, the Commission applauds the heightened standards because "by curtailing the flow of money to claimants," it "will help preserve the assets of W.R. Grace" in case the Libby residents get sicker. Either way W.R. Grace wins, and the people of Libby lose. I have noticed that your law firm's web site lists W.R. Grace as a principal client.

Finally, perhaps the most troubling aspect of the ABA Standard is its elimination of existing rights. There has never been an instance in which the Congress -- without establishing a cause of action or providing an alternative remedy -- has ever summarily terminated the legal rights of individuals who were at the time entitled to
compensation under state law. Yet that is precisely what the ABA Standard proposes. For that reason alone, it is constitutionally suspect.

We have heard from various sources that there are a handful of plaintiff lawyers who support this Standard. We believe that there are no lawyers who represent non-malignant asbestos claimants who would take that position, and, indeed, no lawyers representing non-malignant asbestos claimants participated in the Commission's work, which only deals with standards for non-malignant claimants.

The Association of Trial Lawyers of America holds the American Bar Association in the highest regard. The ABA's accomplishments in advancing the rule of law are legion. It seems to us unthinkable that in one fell swoop the ABA might jeopardize a century of service to the law and to the legal rights of all Americans. I hope the Commission and the Association will reconsider recommending this Report to the House of Delegates.

With every good wish,


Mary Alexander

ABA approval of this proposed standard might open the door to federal legislation adopting the draconian standards outined in the proposal and President Alexander's response. This is how peoples' rights are eroded. Not by prohibiting the cause of action, but by enacting complicated proof requirements that make it all but impossible to prove up your case. Stealth maneuvering, indeed. By the way, who wants to bet that W.R. Grace, a principal client of the incoming ABA president's firm, was a big giver to the Bushies? I'd bet the farm.

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